DIVISIONAL COURT FILE NO.: 734/02
SUPERIOR COURT OF JUSTICE – ONTARIO
(Divisional Court)
RE: DR. RONALD H. WILSON Appellant
- and -
DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
BEFORE: McRAE, THEN & EPSTEIN JJ.
COUNSEL: Mary M. Thomson & Christopher M. Hubbard, for the Appellant Elisabeth Widner, for the Respondent
HEARD: November 3 & 4, 2003
E N D O R S E M E N T
1Dr. Ronald H. Wilson appeals from a decision of the Discipline Committee of the College of Physicians and Surgeons wherein he was found guilty of professional misconduct and incompetence. He also appeals the penalty of revocation of his license to practise and the cost award of $25,000 imposed by the committee.
2The committee heard evidence over 13 days in January, February and March of 2002. They accepted the evidence of expert witnesses and made findings of credibility that in our view are unassailable on appeal. Having made these findings, it was not unreasonable for this committee to conclude, as it did, that his conduct and his failure to act constituted professional misconduct and incompetence. We would not interfere with the committee’s findings in this regard.
3On the matter of penalty, Dr. Wilson’s licence to practise was revoked, a penalty counsel for the College acknowledges is reserved for the most egregious cases of misconduct.
4The evidence before the committee did not in any way establish that Dr. Wilson was incompetent or unprofessional in his practice as a neurologist. There was evidence that he was an excellent neurologist and a strong advocate for his patients. The evidence of misconduct primarily related to the operation of an EEG testing facility of which he was medical director and also a partner with an EEG technician, Mr. Nicolas Kyprianou. Unfortunately Mr. Kyprianou was a carrier of the Hepatitus B virus with the E antigen that made him highly contagious and likely to infect those with whom he came into contact.
5There is no longer any doubt that a substantial number of Dr. Wilson’s patients were infected with the Hepatitus B virus as a result of the EEG tests performed on them by Mr. Kyprianou. There is also no question that neither Dr. Wilson nor Mr. Kyprianou knew or could have known that Mr. Kyprianou was a carrier of the Hepatitus B virus of the most contagious type.
6The basis of Dr. Wilson’s culpability related to his failure to ensure that his patients were not harmed or exposed to harm through appropriate supervision and monitoring of the EEG clinic and more particularly Mr. Kyprianou’s practices. Specifically, Dr. Wilson’s licence to practise was revoked because he “was responsible for the Hepatitus B infections in his patients, that led to one death, many seriously ill people, and many who will continue to be carriers of the disease. Dr. Wilson created the environment that allowed this tragedy to occur by lack of supervision of his employees, lack of protection of his employees and patients from infectious diseases, lack of any formal training of his employees in the area of infection control and lack of any monitoring of the sterility of the needles used to perform the EEGs.”
7The committee further found that Dr. Wilson knew that standards required gloves be worn during invasive procedures but chose not to enforce their use.
8He was also faulted for testing some patients for Hepatitus B, once he learned of the outbreak, without informing them why the tests were being conducted.
9With respect to his work as a neurologist, the committee observed that while there was abundant evidence that Dr. Wilson was practising appropriately as a neurologist, he showed, “remarkable lack of clinical judgment”. The findings the committee appeared to rely upon in coming to this conclusion were that the doctor ordered and performed EEGs that were not necessary and that he continued to approve the use of needle electrodes to perform EEGs long after he knew or ought to have known that this was not a recommended standard of practise.
10They summarized their reasons by saying, “The committee believes that, given the nature of Dr. Wilson’s involvement in the cause of the epidemic, his lack of remorse and insight, the welfare of the public and the reputation of the profession are best served by denying Dr. Wilson the right to practise”.
11Counsel agree that the standard of review with respect to an appropriate sanction for professional misconduct is reasonableness simpliciter. The appellate court should not substitute its own view of the correct sanction but may intervene only if the decision is shown to be unreasonable. See: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17, para. 43. The standard of reasonableness basically involves asking “after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?” See: Ryan, supra at para. 47
12In Takahashi v. College of Physicians and Surgeons of Ontario (1980), 1979 2045 (ON SC), 102 D.L.R. (3d) 695 at 706, the Divisional Court expressed the nature of the deference to be shown to professional bodies in the imposition of penalty as follows:
The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct, and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.
13Simply put, if an error in principle is demonstrated with respect to penalty, then the penalty is unreasonable.
14We are of the view that the committee’s decision to revoke Dr. Wilson’s licence to practise was unreasonable.
15A discipline hearing is quasi criminal in nature. The penalty of revocation is often more serious that many penalties imposed for criminal offences. See, College of Physicians and Surgeons of Ontario v. Boodoosingh (1990), 1990 6686 (ON SC), 73 O.R. (2d) 478.
16The committee’s reasons for penalty make it clear that a major factor in its decision to revoke the doctor’s licence was the damage that the outbreak had caused to the public and the “extent of the risk to Dr. Wilson’s patients both past and future and to the public in general” if he were allowed to continue to practise.
17It is common ground that Dr. Wilson will not be performing EEGs or supervising the performance of EEGs as a medical director in the future. The issue with respect to public safety therefore centers on his work as a neurologist.
18In this regard the committee used their findings with respect to Dr. Wilson’s deficiencies as a medical director to support its conclusion that Dr. Wilson’s lack of judgment and insight applied to all areas of his practice. The committee came to this conclusion in the face of virtually overwhelming evidence from respected peers in the medical profession, called at the penalty hearing, in support of Dr. Wilson’s fitness, to practise solely as a neurologist. Dr. Young, who had been called by the college as a witness in support of the discipline finding, testified in the penalty phase that it was not necessary to revoke Dr. Wilson’s licence in order to protect the public. Moreover, the committee appears to have overlooked the significance of Dr. Wilson’s unblemished record as a neurologist in the community that he served for 46 years.
19The committee erred in principle by concluding that the risks Dr. Wilson subjected his patients to in respect to its supervision of the EEG clinic as medical director would inevitably reoccur in respect of any future practice as a neurologist. In our view, this conclusion, fundamental to the decision to revoke, was an unreasonable inference relating to Dr. Wilson’s future practice as a neurologist and was not supported by any evidence. Indeed, the evidence was to the effect that Dr. Wilson would impose little, if any, risk if allowed to practise solely as a neurologist in the community which is now seriously underserviced.
20As previously indicated, we are mindful of the fact that courts should not lightly interfere with the sentence imposed by a peer review committee. Nevertheless, on the facts of this case, we conclude that the penalty cannot stand.
21Before the committee, counsel for Dr. Wilson submitted that a two-year suspension as a neurologist was appropriate. In the hearing before us, counsel for the college submitted that if we were to decide to vary the penalty then she would support a two year suspension, combined with whatever necessary remedial training was deemed necessary.
22We therefore substitute the following penalty for that imposed by the committee. Dr. Wilson will be banned for life from acting in the capacity of a medical director. He will be suspended from practising as a neurologist for a period of two years from November 12, 2002. In addition Dr. Wilson will take such remedial course or courses as recommended by Dr. Young and which are recognized by the Canadian and American Neurological Societies.
23The costs award the committee made was entirely within its discretion. We are not persuaded that there is any reason to interfere.
24Success has been divided. There will be no order as to costs of the appeal.
McRAE J.
THEN J.
EPSTEIN J.